Exhibit
10.2


 


Exhibit
A to Asset Purchase Agreement


 


PRINCIPAL STOCKHOLDER
AGREEMENT


 


THIS PRINCIPAL STOCKHOLDER AGREEMENT (this “Agreement”),
is dated as of July 20, 2004, by and among David S. Oros (“Executive”),
NexGen Technologies, L.L.C. (“NexGen”) and Slingshot Acquisition
Corporation, a Delaware corporation (“Buyer”).  Unless otherwise indicated, capitalized terms used herein that
are not otherwise defined herein shall have the meanings specified in the Asset
Purchase Agreement (as defined below).


 


WHEREAS, concurrently with the execution hereof,
Aether Systems, Inc., a Delaware corporation (“Seller”), and Buyer have
entered into an Asset Purchase Agreement (the “Asset Purchase Agreement”);


 


WHEREAS, Executive owns directly 1,191,289, and
indirectly through NexGen 3,326,754, shares of Common Stock, par value $.01 per
share, of the Seller (together, “Seller Common Stock”);


 


WHEREAS, the Seller is required to obtain the approval
of the transactions contemplated by the Asset Purchase agreement and the adoption
of the Asset Purchase Agreement by the Seller’s stockholders under the Delaware
General Corporation Law (the “DGCL”) and intends to call a special
meeting of the Seller’s stockholders to seek such approval and adoption (the “Stockholders’
Meeting”);


 


WHEREAS, as a condition to its willingness to enter
into the Asset Purchase Agreement, Buyer has required that the Executive and
NexGen agree, and the Executive and NexGen have agreed, to enter into this
Agreement;


 


NOW, THEREFORE, in consideration of the foregoing and
the mutual covenants and agreements contained herein, and intending to be
legally bound hereby, the parties hereto hereby agree as follows:


 


ARTICLE I


 


VOTING


 


1.1.          Voting of the Seller Stock.  Executive shall, unless this Agreement has
been terminated in accordance with its terms:


 


(a)           vote, or cause to be voted, the
Seller Common Stock in favor of the transactions contemplated by the Asset
Purchase Agreement and the adoption of the Asset Purchase Agreement at the
Stockholders’ Meeting, and against any Acquisition Proposal and any other
action that may reasonably be expected to impede, interfere with, delay,
postpone, attempt to discourage or have a material adverse effect on the
consummation of, the transaction contemplated by the Asset Purchase Agreement;


 

















 


(b)           if requested by Buyer, execute (and
not revoke) a proxy in favor of Buyer or such other Person as Buyer may
designate in writing to vote the Seller Common Stock in favor of the
transaction contemplated by the Asset Purchase Agreement and the adoption of
the Asset Purchase Agreement at the Stockholders’ Meeting; provided, however,
that the foregoing proxy shall terminate immediately upon the termination of
this Agreement in accordance with its terms, including with respect to matters
as to which a record date has theretofore passed; or


 


(c)           if requested by Buyer, execute a
written consent of stockholders pursuant to Section 228 of the DGCL approving
the transactions contemplated by the Asset Purchase Agreement and adopting the
Asset Purchase Agreement.


 


1.2           No
Limitation on Actions of the Executive as Director.  Buyer acknowledges that Executive is an
officer and director of the Seller and notwithstanding anything to the contrary
in this Agreement, nothing in this Agreement shall be deemed to apply to, or
limit in any manner, the discretion of Executive with respect to any action to
be taken (or omitted) by Executive in the Executive’s fiduciary capacity as an
officer or director of Seller.


 


ARTICLE II


 


ADDITIONAL COVENANTS


 


2.1.          No Inconsistent Action.  Unless and until this Agreement is
terminated in accordance with its terms and except as required by order of a
court of competent jurisdiction, Executive shall not, and shall not permit
NexGen to:  (i) sell, transfer, convey,
assign, pledge or otherwise dispose of (or agree to sell, transfer, convey,
assign, pledge or otherwise dispose of) any of the Seller Common Stock or any
rights therein, (ii) enter into any voting agreement with any Person with
respect to any of the Seller Common Stock, (iii) grant to any Person any proxy
(revocable or irrevocable) or power of attorney with respect to any of the
Seller Common Stock, (iv) deposit any of the Seller Common Stock in a voting
trust or (v) otherwise enter into any agreement or arrangement with any Person
limiting or affecting Executive’s or NexGen’s legal power, authority or right
to vote the Seller Common Stock or take any other action that could reasonably
be expected to prevent or hinder the performance of Executive’s or NexGen’s
obligations hereunder.


 


ARTICLE III


 


REPRESENTATIONS AND
WARRANTIES OF EXECUTIVE AND NEXGEN


 


3.1.          The Seller Common Stock.  As of the date hereof, Executive is the
beneficial owner of 4,518,043 shares of Seller Common Stock, free and clear of
any arrangements affecting the right to vote or dispose of such Seller Common
Stock, except as contemplated by this Agreement.  Other than such shares of Seller Common Stock, Executive does not
own, beneficially or of record any other shares of capital stock of the Seller
or any securities convertible or exchangeable for shares of capital stock of
the Seller.  In the event Executive or
NexGen exercises any option, warrant or other right to acquire common stock of
the Seller, such


 


2

















 


common stock shall be considered Seller Common Stock hereunder and
subject to all of the provisions hereof.


 


3.2.          Authority; No Conflicts.  Executive and NexGen each has the full legal
power, authority and right to enter into this Agreement, to execute and deliver
this Agreement, to perform its obligations hereunder.  This Agreement constitutes a valid and binding obligation of
Executive and NexGen enforceable against it in accordance with its terms.  Except as required by the Exchange Act, no
filing with or notice to, and no permit, authorization, consent or approval of,
any Governmental Authority or any other Person is necessary for the execution
of this Agreement by Executive or NexGen or the performance of Executive’s or
NexGen’s obligations hereunder.  The
execution and delivery of this Agreement by Executive and NexGen and the
performance of Executive’s and NexGen’s obligations hereunder will not conflict
with, or result in any violation or breach of, or default (with or without
notice or lapse of time or both) (i) of any judgment, injunction, order,
notice, decree, statute, law, ordinance, arrangement, rule or regulation
applicable to Executive or NexGen or (ii) under any agreement to which
Executive or NexGen is a party or by which Executive or NexGen is bound.


 


ARTICLE IV


 


REPRESENTATIONS AND
WARRANTIES OF

BUYER


 


4.1.          Authority; No Conflicts.  Buyer has the full legal power, authority
and right to enter into this Agreement, to execute and deliver this Agreement
and to perform its respective obligations hereunder.  This Agreement has been duly and validly authorized, executed and
delivered by Buyer and constitutes a valid and binding obligation of Buyer
enforceable against it in accordance with its terms.  No filing with or notice to, and no permit, authorization,
consent or approval of, any Governmental Authority or any other Person is
necessary for the execution of this Agreement by Buyer or the performance by
Buyer of its obligations hereunder.  The
execution and delivery of this Agreement by Buyer and the performance of its
obligations hereunder will not conflict with, or result in any violation or
breach of, or default (with or without notice or lapse of time or both) (a) of
any judgment, injunction, order, notice, decree, statute, law, ordinance,
arrangement, rule or regulation applicable to Buyer, (b) under any provision of
its organizational documents or (c) under any agreement to which Buyer is a
party or by which Buyer (or any of its respective assets) is bound, including
any voting agreement, stockholders agreement, voting trust, trust agreement,
pledge agreement, loan or credit agreement, note, bond, mortgage, indenture,
lease or other agreement, instrument, permit, concession, franchise or license.


 


ARTICLE V

TERMINATION


 


5.1.          Termination.  This Agreement may be terminated as follows:


 


3

















 


(a)           Automatically.  All obligations under this Agreement shall
terminate at the earlier of Closing or the termination of the Asset Purchase
Agreement.


 


(b)           Mutual Consent.  By mutual written consent of Buyer,
Executive and NexGen at any time.


 


(c)           Buyer or Executive.  By either Buyer, Executive or NexGen, by
written notice to the other party, if any Governmental Authority shall have
issued an order permanently enjoining, restraining or otherwise prohibiting the
transaction contemplated by the Asset Purchase Agreement and such order shall
have become final and nonappealable.


 


(d)           Executive.  By Executive or NexGen, by written notice to
Buyer, (i) at any time, if Buyer shall have breached in any material respect
any of its representations, warranties, covenants or other agreements contained
in this Agreement, which breach or failure to perform is incapable of being
cured or if capable of being cured, has not been cured within thirty (30) days
after the giving of written notice to Buyer and (ii) at any time after the
Stockholders Meeting if the Seller Stockholders’ do not approve the transaction
contemplated by the Asset Purchase Agreement and the adoption of the Asset
Purchase Agreement.


 


(e)           Buyer.  By Buyer, by written notice to Executive and
NexGen, (i) at any time, if Executive shall have breached in any material
respect any of its representations, warranties, covenants or other agreements
contained in this Agreement, which breach or failure to perform is incapable of
being cured, or if capable of being cured, has not been cured within thirty
(30) days after the giving of written notice to Executive and NexGen, and
provided further that such termination may only occur, (ii) at any time prior
to the Stockholders’ Meeting, if the board of directors of Seller or any
committee thereof withdraws its approval or recommendation of the transactions
contemplated by the Asset Purchase Agreement and the adoption of the Asset
Purchase Agreement and (iii) at any time after the Stockholders’ Meeting if the
stockholders of Seller do not vote in favor of the transactions contemplated by
the Asset Purchase Agreement and the adoption of the Asset Purchase Agreement
at the Stockholders’ Meeting.


 


5.2.          Effect of Termination.


 


(a)           No party shall have any liability or
obligation hereunder to any other party or their respective officers or
directors other than in the event of termination as provided in Section
5.1(d) or (e).


 


ARTICLE VI


 


MISCELLANEOUS


 


6.1.          Further Assurances.  Each party hereto shall, upon request of any
other party, execute and deliver all such further documents and instruments and
take all reasonable action as may be deemed by such requesting party to be
necessary or desirable to carry out the provisions hereof.


 


4

















 


6.2.          Specific Performance.  Each of the parties hereto acknowledges and
agrees that in the event of any breach of this Agreement, each non-breaching
party would be irreparably and immediately harmed and could not be made whole
by monetary damages.  It is accordingly
agreed that the parties hereto (i) will waive, in any action for specific
performance, the defense of adequacy of a remedy at law and (ii) will be
entitled, in addition to any other remedy to which they may be entitled at law
or in equity, to compel specific performance of this Agreement in any action
instituted in any state or federal court sitting in the State of New York.


 


6.3.          Entire Agreement.  This Agreement and, to the extent referred
to herein, the Asset Purchase Agreement, constitute the entire agreement
between Buyer and Executive with respect to the subject matter hereof and
supersedes all prior agreements and understandings, both written and oral,
between Buyer and Executive with respect to the subject matter hereof.


 


6.4.          Obligations of Successors;
Assignment.  This Agreement shall be
binding upon, inure solely to the benefit of, and be enforceable by, the
parties hereto and their respective successors, legal representatives and
assigns.  Neither this Agreement nor any
of the rights, interests or obligations under this Agreement may be assigned by
operation of law or otherwise or by any of the parties hereto without the prior
written consent of the other parties.


 


6.5.          Amendment; Waiver.  Any provisions of this Agreement may be
waived at any time by the party that is entitled to the benefits thereof.  No such waiver, amendment or supplement will
be effective unless in writing and signed by the party or parties sought to be
bound thereby.  Any waiver by any party
of a breach of any provision of this Agreement will not operate as or be
construed to be a waiver of any other breach of such provisions or of any
breach of any other provision of this Agreement.  The failure of a party to insist upon strict adherence to any
term of this Agreement or one or more sections hereof will not be considered a
waiver or deprive that party of the right thereafter to insist upon strict
adherence to that term or any other term of this Agreement.


 


6.6.          Severability.  If any term or other provision of this
Agreement is invalid, illegal or incapable of being enforced by any rule of law
or public policy, all other conditions and provisions of this Agreement shall nevertheless
remain in full force and effect so long as the economic or legal substance of
this Agreement is not affected in any manner materially adverse to any
party.  Upon such determination that any
term or other provision is invalid, illegal or incapable of being enforced, the
parties hereto shall negotiate in good faith to modify this Agreement so as to
effect the original intent of the parties as closely as possible in a mutually
acceptable manner in order that the terms of this Agreement remain as originally
contemplated to the fullest extent possible.


 


6.7.          Notices.  Any notices hereunder shall be deemed
sufficiently given by one party to another only if in writing and if and when
delivered or tendered by personal delivery or as of five (5) Business Days
after deposit in the United States mail in a sealed envelope, registered or
certified, with postage prepaid, twenty-four (24) hours after deposit with an
overnight courier, or after confirmation of delivery by facsimile on a Business
Day (unless arrangements have otherwise been made to receive such notice by
facsimile outside of normal business hours),


 


5

















 


addressed as follows (or at such other address or facsimile number for
a party as shall be specified by like notice):


 


If to Buyer:


 


c/o Platinum Equity Advisors, LLC

2049 Century Park East, Suite 2700

Los Angeles, California 90067

Telephone:  (310) 712-1850

Fax:  (310) 712-1863

Attention:  Eva M. Kalawski, Esq.


 


If to Executive or NexGen:


 


David S. Oros


11500 Cronridge Drive, Suite 110


Owings Mills, Maryland  21117


Telephone:  (443) 394-5214

Fax:  (410) 356-8689


 


With a copy (which shall not constitute effective notice) to:


 


Kirkland & Ellis LLP


655 15th Street, N.W., Suite 1200


Washington, D.C.  20005


Fax:  (202) 879-5200


Attention:  Mark D. Director, Esq.


 


or to such other address as the party addressed shall have previously
designated by written notice to the serving party, given in accordance with
this Section 6.7.  A notice
not given as provided above shall, if it is in writing, be deemed given if and
when actually received by the party to whom it is given.  Any party may unilaterally change any one or
more of the addresses to which a notice to the party or its representative is
to be delivered or mailed, by written notice to the other party hereto given in
the manner stated above.


 


6.8.          Governing Law.  This Agreement will be governed by and
construed in accordance with the laws of the state of New York applicable to
contracts made and performed in that state. 
Each party hereto hereby (i) irrevocably and unconditionally submits in
any legal action or proceeding relating to this Agreement, or for recognition
and enforcement of any judgment in respect thereof, to the exclusive general
jurisdiction of the state and federal courts in the state of New York, and
appellate courts from any thereof and (ii) consents that any action or
proceeding may be brought in such courts and waives any objection that it may
now or hereafter have to the venue of any such action or proceeding in any such
court or that such action or proceeding was brought in an inconvenient court
and agrees not to plead or claim the same.


 


6

















 


6.9.          Cumulative Remedies.  All rights, powers and remedies provided
under this Agreement or otherwise available in respect hereof at law or in
equity will be cumulative and not alternative, and the exercise of any thereof
by either party will not preclude the simultaneous or later exercise of any
other such right, power or remedy by such party.


 


6.10.        Headings.  The descriptive headings contained in this
Agreement are included for convenience of reference only and shall not affect
in any way the meaning or interpretation of this Agreement.


 


6.11.        Survival.  The representations, warranties and
covenants under this Agreement shall terminate on the earlier of termination of
this Agreement or the Closing Date and no action or claim for damages resulting
from any misrepresentation or breach of warranty or covenant shall be brought
or made after such period, except that such time limitation shall not apply to
any claims for misrepresentations and breach of warranties or covenants which
have been asserted and which are the subject of a written notice prior to the
expiration of such survival period, which notice specifies in reasonable detail
the nature of the claim.


 


6.12.        Counterparts.  This Agreement may be executed in one or
more counterparts, and by the different parties hereto in separate
counterparts, each of which when executed shall be deemed to be an original but
all of which taken together shall constitute one and the same agreement.  The signatures of the parties to this
Agreement may be delivered by facsimile and any such facsimile signature shall
be deemed an original.


 


[The
remainder of this page has been intentionally left blank.  Signature page follows]


 


7

















 


IN WITNESS WHEREOF, the parties have caused this
Agreement to be duly executed and delivered by their proper and duly authorized
officers or representatives as of the day and year first written above.


 


	
   

  	
  EXECUTIVE

  
	
   

  	
   

  
	
   

  	
   

  
	
   

  	
  By:

  	
  /s/  David S.
  Oros

  	
   

  
	
   

  	
   

  	
  Name:  David
  S. Oros

  
	
   

  	
   

  
	
   

  	
   

  
	
   

  	
  NEXGEN TECHNOLOGIES, L.L.C.

  
	
   

  	
   

  
	
   

  	
   

  
	
   

  	
  By

  	
  /s/ David S. Oros

  	
   

  
	
   

  	
   

  	
  Name:  David
  S. Oros

  
	
   

  	
   

  	
  Title: 
  Managing Member

  
	
   

  	
   

  
	
   

  	
   

  
	
   

  	
  SLINGSHOT ACQUISITION CORPORATION

  
	
   

  	
   

  
	
   

  	
   

  
	
   

  	
  By:

  	
  /s/  Eva M.
  Kalawski

  	
   

  
	
   

  	
   

  	
  Name: Eva M. Kalawski

  
	
   

  	
   

  	
  Title: Vice President and Secretary